In Wisconsin, under the administrative code, before taking a sample of an OWI suspect’s breath at the police station with the Intoximeter, the officer must observe the person for twenty minutes. This does not apply to blood tests. The purpose is to make sure that the suspect doesn’t have any residual mouth alcohol, which can contaminate the results. The officer is to make sure that the person doesn’t throw up, burp, belch, regurgitate, etc. This observation period is mandatory under Wisconsin law.
Now the issue in Wisconsin is that the courts have held that if this observation period was not fully conducted, then that only goes to the weight of its reliability. What that means is that it is not a motion you file in front of the judge to have your case dismissed. Rather, it is a question of fact for the judge or jury depending on whether you have a bench or jury trial.
It is an argument at trial that the results of the test are not reliable and shouldn’t hold a lot of weight. This impacts the prosecutor’s case because they have to prove beyond a reasonable doubt for a second and higher OWI offense that you were above the legal limit. This issue provides the doubt and therefore the prosecutor has to come up with more evidence to prove that you were indeed over the legal limit. Now the closer your unreliable results are to the legal limit, the better your chances of winning at trial. For first offenses, since it is civil in nature, the prosecutors have to prove the elements of the crime by preponderance of the evidence, which is a lower standard than beyond a reasonable doubt.
It is always important to double check that the observation period was conducted for a full twenty minutes. There are times where client’s remembered being watched, but after obtaining the video footage it was determined that they were only observed for half the required time. Contact us today to set up a free consultation so that we can discuss the twenty minute observation period with you and whether the officer followed the correct procedure.